I welcome the witnesses from the Law Society and thank them for making a written submission and appearing before us this afternoon. This is an all-party committee made up of Senators Dardis, Brian Hayes, Ryan, O'Toole and myself. We have read the Law Society submission carefully. Therefore, if the witnesses give us a synopsis, we will then question them. The main questioners will be Senators O'Toole and Brian Hayes but we will all contribute.
Presentation by Law Society.
Witnesses: Ms Alma Clissmann, Mr. John Costello and Mr. Patrick O'Connor.
We thank the sub-committee for inviting us and are pleased to be here on behalf of the Law Society. I am chairman of the Law Society law reform committee which made these proposals. With me are Ms Alma Clissmann, secretary of the committee, and Mr. Patrick O'Connor, a former president of the Law Society.
On a personal note, my uncle was Senator Alexis FitzGerald, a Member of this House for many years. In "Essays in Memory of Alexis Fitzgerald", published in 1987 in the event of his death, Senator Jim Dooge wrote the article "The Role of the Seanad". Three quotations from that essay are appropriate:
The questions that have recurred in the history of the Seanad over the past have revolved around these twin problems of function and composition.
The variety of electoral procedures adopted or proposed in Ireland and abroad seems endless. One is forced to the conclusion that the ideal system is a chimera and realistic compromises must be made.
The sub-committee knows this already. The final quotation is also very useful:
It is essential that among the core membership of the Seanad there should be a sufficient number of people who have a high degree of loyalty to the Seanad as an institution and who have no ambition to enter Dáil Éireann.
The sub-committee may have its own views but former Senator Jim Dooge was well respected and his views are worth listening to. Senators will be glad to know that we see a future role for the Seanad. Therefore, they can all relax.
That is very good of the Law Society.
First, we believe restricting eligibility to graduates of the NUI and University of Dublin is no longer justified and that graduates of all third level institutions should be eligible to seek nominations. Second, we say the panel selection and constituency method of electing Senators is lacking in transparency and should be reformed. We see much merit in the recommendations of Deputy Kathleen Lynch that a new panel system could be built on the social partners identified by the NESF. Third, we say the social partners could be added to as required and that the universities could be represented on such a panel. Fourth, we say constituencies could be based on the element of social partnership mentioned. Alternatively, they could be based on large geographic constituencies similar to those used for European Parliament elections. Fifth, we say access by MEPs to the Seanad or giving them seats could serve a useful purpose in bringing the European Parliament closer to the people. Membership of the Seanad could give MEPs a forum to explain and account for their actions on a regular basis, not just at election time, as is the case at present.
We set out a possible breakdown of a future Seanad. At 60, the number of Senators is sufficient and should not be increased. One possible reconstitution of the Seanad election system would be as follows: some 30 Senators would be directly elected by universal suffrage, with nominations from the social partners, university graduates and other representative panels, using the European Parliament constituencies; another 20 would be nominated and elected by local councils, the constituencies being the European Parliament constituencies or, perhaps, one all-Ireland constituency - MEPs and Deputies could also be included as electors, although we would not see a role for outgoing Senators; the remaining ten would be nominated by the Taoiseach while following guidelines.
We would still see a role for the local councils and believe the experience of local councillors is very important. We are delighted to see two NUI representatives here. I am an NUI graduate——
Welcome, constituent.
Do we bow now?
The university graduates have certainly done very well in the Seanad. Finally, we say it is possible that enough people of sufficient calibre will not seek election as Senators unless the powers of the Seanad to be an effective organ of the Oireachtas are enhanced. The recommendations of Mr. Michael Laver in the report of the constitution review group deserve consideration.
These are just a few of the points I would like to highlight. I ask my colleague, Ms Alma Clissmann, to say a few words about our committee. I will then ask Mr. Pat O'Connor to add any other points that need to be made.
Ms Clissmann
I would like to say a few words about the law reform committee which was established by the council of the Law Society in 1997. The intention was to tap into the considerable expertise available among members of the profession on the operation of the law in practice. The committee is appointed annually by the president and consists of volunteer solicitors who come from a variety of backgrounds and different practice experience. It is serviced by a solicitor secretary - me. We also recruit on an ad hoc basis solicitors with different kinds of expertise for projects.
To date, we have produced five reports on areas of law reform - domestic violence, mental health, adoption law, nullity of marriage and, most recently, charity law - and have two other reports in the works, one on the in-camera rule and the other on aspects of child law. In addition, we have run seminars and conferences. In 2002, for example, we ran two seminars, one on the imminent expiry of previously controlled tenancies and the other on statute law revision, both of which were very well attended. Just last week we ran a major conference on the reform of disability law in conjunction with the NDA and the Irish Human Rights Commission.
We keep in contact with different Departments on areas where we have made submissions or done reports and where there is interest. One example is the Civil Registration Bill 2003 in respect of which we were in touch with the Department of Justice, Equality and Law Reform while in gestation and made submissions and had meetings with officials. We will be making submissions to the Oireachtas in due course. As a result of the ongoing contact we have had in relation to adoption law reform, one of our members, Mr. Geoffrey Shannon, was commissioned by the Minister of State at the Department of Health and Children to draft a consultation paper which was published in the summer. That gives the committee an overview of the work of the committee.
I thank the Chairman, Senators and those for whom I voted, for having us here.
I will tell Senator Quinn.
I do not propose to go any further than the Law Society submission but there are a few other matters we should perhaps consider also. One is the calibre of Members in the Seanad. I am not saying this just to flatter Senators because they are present but it is a given that the calibre of representatives in the Seanad is of the highest order and that they are well respected. One of the great difficulties the public has, perhaps, is that people do not realise the calibre of both representation and debate in this Chamber.
The Law Society's view is that there should be a second Chamber. From there, it is a question of whether one can reform or improve it. One suggestion that Senators might consider is that in the overall context of trying to diversify the organs of government they perhaps might have a Chamber like the Seanad in the midlands or west rather than have everything centrally controlled in Dublin. That might be a way of improving the standing of the Seanad and also improving people's understanding of it. The fact that there are two Chambers close together here tends to put Deputies and Senators all in the one boat. While some Senators may have been in the other boat, are moving into the boat or vice versa, this proposal might just help a little.
The one hope we all have, which is perhaps shared in the public domain, is that something will come out of this review. I will not use the phrase used by a Senator from the midlands who shared the same constituency as the Chairman on one occasion in relation to reform. Perhaps the manner in which that was presented might not necessarily be the way the committee is going to deal with the issue but I was heartened to hear the Chairman say there would be a report available before the end of 2003. I hope it will be acted on and not left on shelf to gather feathers of whatever bird-type they might be.
We do not intend to bring our dusters with us. I thank the three witnesses for what they have said.
I very much thank the representatives of the Law Society for taking the time and their contribution which covers a lot of space. I also thank them for the law reform documents which always make us feel guilty for not getting to read them all. They are always sitting there on the desk to be read next week and one only gets to thumb through them, but it really is superb work and hugely important for us when we come to discuss legislation. We are still arguing about the adoption issues here, as the Law Society will know, with other business.
I was very interested in the reference to former Senator Jim Dooge and that beautiful word "chimera" which is not used so much anymore. It is strange what the Law society says - that it is all about function and composition. I am sure my colleagues could take issue with this, but if I am to make broad brushstrokes, what we are hearing in general is that people are in favour of a bicameral system and the issue on which they are focusing is the composition-electoral process. The question of function and powers is not coming through that strongly but the Law Society has made a major point on it to which I will return.
The Law Society was clear in what it said. Therefore, the reason I am not asking anything about a particular point is that we do not need clarification on it. In terms of universal suffrage for the particular panels of which the Law Society spoke, the delegation did not indicate how it might divide up the "universe" into panels. Would everybody vote on each panel or would people be related to a particular panel? I seek clarification of the Law Society's thinking. More importantly, I do not think the society told us - I could be wrong as we have read so much material - how a person might gain nomination to the panels. Would there be a certain bar or level of qualification or is the society simply going along with the current constitutional need for people with knowledge and experience? Has it thought about this?
The general view we are hearing is that the Seanad does not need more power. The Law Society is distinguishing between power and function and probably has a more sophisticated approach when it talks about changing functions. It has referred to Mr. Michael Laver and others but specifically what are the functions it would like to see within the House that it does not have now?
The short answer is that we have not thought extensively on the Senator's questions. The first point is that we would like to have universal suffrage if at all possible for the Seanad.
Extend it to every citizen.
That would be the ideal for which to aim.
That is clear.
Deputy Kathleen Lynch has 11 panels in her list which represent many.
I know. I was stuck with them for three months in Government Buildings. We were all there.
It was for the discussion on benchmarking.
As regards nominations, the different organisations would perhaps nominate one or two persons. That is a detail about which we have not thought.
I am not trying to stick the Law Society with this but if we are changing the electorate, there needs to be some balance in terms of the people who go forward. We all feel there is a need to move in the direction the Law Society is suggesting. Surely the difference between the Dáil and the Seanad, if we distinguish between them, is that the Dáil is the voice of the people at that level. Any citizen can go forward and there is no further bar to be crossed to get in there.
Is the Law Society thinking of the same thing for the Seanad? There is nothing wrong with this. We are just trying to get to the bottom of its thinking. For example, if someone is nominated by the Society of St. Vincent de Paul, or a similar group, should he or she be a member or a client of that organisation or whatever? Should the person reflect the panel in some definable or qualified way?
In so far as we have thought about it there should be universal suffrage for the Seanad. The next issue is who should be entitled to nominate. We have made it clear in our submission that the Taoiseach should have the right of nomination of a specific number of Senators.
We are delighted to hear the Law Society say that.
I was referring to people nominated onto the panel for the Seanad.
I appreciate that and that is the second element but I jumped ahead to the third element. In so far as our view is crystallised, there should be nominating bodies, and persons from those nominating bodies should be representative. The overall context of the social partners is perhaps too wide to comprise the nominating sectors. What is in place is too narrow. It would lie somewhere between the two but the nominating bodies and the criteria for nomination from those bodies would have to be redefined
Can the Law Society respond on the functions issue?
Ms Clissman
Before we go on to that, the Law Society represents a large membership and our brief, therefore, was not to make political judgments. One of the principles which motivated this was the concern about elitism. Restricting universal suffrage in any way, or saying that people would have to be qualified in any particular way, always risks introducing an element of elitism.
That is true.
In his article Jim Dooge quotes my late uncle, Alexis Fitzgerald, saying much of what the Seanad can do comes down to the individual Ministers. The Senators present must have some experience of this.
It is a question of attitude.
Yes.
We have our favourites.
More than that, we have had our favourites also.
It is interesting that Alexis Fitzgerald arrived at that view after 12 years experience. I do not know how much the Seanad can do in theory.
The Minister who is bigger than his or her advisers is going to make the difference.
Yes, one who is able to make up his or her mind about a matter.
I was interested to hear Mr. O'Connor suggest that we might meet in different parts of the country. When I lost my seat in the Dáil and was elected to the Seanad, I met a former constituent in the pub who said he was delighted that I had been elected to the Seanad and wondered did the Seanad meet in Shannon. I was able to inform him that it met just down the corridor from the Dáil. Therefore, there is a question mark among the public over where we meet geographically.
The Law Society raised an important point of Jim Dooge's, namely, that people have to have loyalty and commitment to this House as separate and distinct from the other House. The problem is that for people who want to pursue a career in politics there is pressure to get back into the Dáil or remain in the Dáil. People see this House as one in which they will sit for a few years while they try to get back into the Dáil.
Has the Law Society any ideas about how the party system can change this? The advantage of having a national list system whereby people vote for parties is that the political parties can determine one to ten who will be at the top of the list. An example of this is a former candidate of ours, Professor Tom O'Malley, who did poorly in the election. He was not a councillor and could not possibly get elected to the Seanad because of the way in which the current Seanad was constituted. If we gave more power to the political parties for a national vote, people like him, and other eminent persons, who could not make it through the party system because of all the ground work required may have a chance to have a voice in the Seanad. We want to mix them. The notion that people of that calibre and variety should be the only people in politics is nonsensical but has the Law Society given any consideration to how we could make people see a career in the Seanad as an end in itself?
The question assumes that those who are not elected by universal suffrage must somehow get back into the political system but if he or she cannot get elected at the polls perhaps he or she was not the right person. It is not that people of high calibre fail to get elected or vice versa but one has to decide what the Seanad is for and what calibre of people one wants there. If we accept universal suffrage for the Seanad do we retain the proportional representation transferable vote system that we have, or do we go to the list system of other European countries? Then all that is achieved is to transfer the dogfight back into the political parties rather than leaving it for the public to decide.
One still has to decide on the nominating bodies which is a difficult call. My personal preference, which is not necessarily that of the Law Society, is to have a list system from which the Senators would be elected. However, there may be other views in the Law Society that would say that is not the correct system.
Would people vote for individual named candidates on the list or for parties? The downside to voting for parties would be the creation of strong centralised power within the parties. The upside is that people who would not ordinarily get through the mill and grill of politics could find their way into the House and might have a significant contribution to make.
That would assume that the cream comes to the top of the political parties.
What comes to the top is what we call the M and Ms: middle-aged males.
The Senator is speaking for himself.
The mothers and Marys. Politics, whether on the macro scale of universal suffrage, or within the party structure, is much the same. It is simply a question of where the dogfights are. If they are within the political party, it is not necessarily the M and Ms who come to the top. The difficulty is to find people of calibre who are prepared to represent the public in whatever guise to come to the top but that is democracy. One cannot interfere with it or determine the quality or calibre of person who is going to be there.
Does Mr. O'Connor support a listing where people have to vote for names on the list rather than parties?
That would be my own preference.
Is the Law Society a nominating body?
Yes.
Did it nominate on the last occasion?
We always get requests.
Does the Law Society have a Member in this House, a person whom it nominated and who was successful?
Our nominee was not successful in the last election but as most of us are graduates, we claim allegiance with some of the university Senators.
We can see that our Senators are delighted with you.
That is not to say we do not recognise the calibre of the other Senators.
How does the Law Society approve or vet the people who seek its nomination?
There is never an avalanche of applications.
Is there not?
Ms Clissmann
My understanding is that because of the difficulty of choosing a nominee and the competition that might arise, we do not normally nominate. I do not know what happened on the last occasion, but very often we do not nominate any candidate.
It may come as a surprise to the sub-committee that we do not get that many applications. When we do get requests, all things being equal and the calibre of people being the same, we will tend to nominate an applicant who is a solicitor rather than one who is not.
What about barristers?
We give equal preference with everyone else.
Was Henry Abbott a nominee of the Law Society?
The Bar Council perhaps.
No, I do not think so. I have a recollection that he was a Law Society nominee.
Perhaps he was at the bottom of the list.
Not at all, barristers are our best friends.
The frightening point is made in the submission that people of sufficient calibre will not seek election as they are frustrated by the lack of power and function within the House. That is logical, but is it true? Is this an indication that people are attracted into politics on the basis of the power they can wield? I am not saying this is not the case in all circumstances, but there are people who feel a duty to go forward. One of the bases of democracy is that if there is no candidate one wishes to support, one should put oneself forward.
I am not sure that everyone would be that altruistic in their viewpoint. Historically, certain people did that. If one goes back to the foundation of the State, one can see in retrospect that this viewpoint existed. It is difficult in the time capsule of today to say who is in politics because they feel it is in the national interest or because they want the power to do something that will actually influence the way society is determined. One could debate this at a philosophical level. However, what is more important - a person who sees the role of a politician as properly using the power inherent in politics to influence the direction in which society develops or the person who says "I will do it because nobody else will"? These viewpoints are two sides of the one coin.
The Law Society made the point that in the passage of legislation, this House could add value in certain ways. One way was by ensuring the viewpoints of those marginalised in society would be represented. There are two ways in which that could be done. Such representatives could be elected to the House as a result of the nomination system outlined by the Law Society. Does the society have any thoughts on direct links between the sitting House and a consultation process with, say, aspects of civic society? Was that part of its thinking or was it thinking purely of the input from the elected people?
In theory, university Senators can consult their graduates if they want specialised information. However, the best way to get experts is by electing them directly to the Chamber where there advice and input is needed. That is one of the advantages of the panel system because it ensures experts are elected to the Chamber. What did the Senator have in mind about consultations?
There is a movement in democracies around the world to build into the legislative process an imperative of consulting with people, interests and groups outside of the political system. It would be similar to what the Law Society was referring to in its earlier discussion.
One of the difficulties is that a Senator who has a particular interest will represent only that interest. However, that interest may not be that of the public or body politic. Except for those involved in political parties or university Senators who have access to experts, there is a great difficulty for Senators in that they do not have the same research facilities as other politicians. They do not have the backup to provide them with the necessary information to form a viewpoint. One sees it in the Dáil to a certain extent, but at least there is Government backup.
That is unique to Ireland. It is quite the opposite in other parliaments where the library would have the facility to produce a paper on an issue in a non-biased way at 24 hour's notice.
If the Seanad is to be reformed, one of the necessary reforms is that additional facilities be given to Senators to critically analyse legislation.
To enable us to have a broader view.
Precisely. All Senators are able to present a case but one needs to have the facts to back it up.
I take that point completely. We have been vocal about the lack of research backup and so on. Quite a few of the groups before the sub-committee, and perhaps the Law Society too, wish to institutionalise a spectrum of expertise. How does the Law Society react to the fact that the expertise already exists within the membership? I accept the point about sectional, narrow focus, but I have a degree in agriculture and a background in journalism. There are Members from various backgrounds and we do have quite a cross-section of society. One can argue the case that the expertise is already available, but it is not expressed properly by virtue of the absence of adequate backup. How does the Law Society respond to this?
If one brings 60 people together, there is going to be a considerable amount of expertise. However, one might have too much expertise on one side and too little on another. No matter how expert a Senator might be in journalism, agriculture or law, one only has a viewpoint that cannot be expanded unless one is given the information to actually express it.
Equally, Ireland does not operate in a vacuum We have to be cognisant of what is going on in our neighbour states and throughout the world. If a Senator does not know how they are developing law in Queensland, New Zealand or Canada or even in civil law countries, then one cannot form a viewpoint in a meaningful way of how the legislation should be drafted and formed. That is a different question to overall policy. We could spend all day talking about this.
I accept the Senator's point. The problem is that if one is also a member of a political party, one's hands may be tied to a certain extent. It is useful to have the Independents also.
Hear, hear. That is the perfect note on which to finish.
Mr. Costello did not quantify how many.
No, Senator O'Toole smells voters. He has a well-developed sense of smell.
I thank the Law Society for its interesting presentation. We will bear it in mind when we are composing our final report of proposals we hope will be implemented. We wish the Law Society luck in all its dealings.
Thank you, Chairman. Will we see the Seanad on the Shannon at some stage?
Yes.
Afloat.
Senator O'Toole is an habitué.
When across the Shannon, the Senators could come to County Mayo.
I recall that Mr. O'Connor told me he was from there.
The witnesses withdrew.